Praxair MRC General Terms and Conditions

The sale by Materials Research Division, Praxair Surface Technologies, Inc. ("MRC"), of any articles or services (the "Products") to any customer ("Buyer") shall be governed by these General Terms and Conditions; and MRC offers to sell its Products only upon the following provisions:

  1. Products: Products covered by any order placed hereunder are only those specifically identified therein. Products may be added thereto only by the parties’ agreement in writing.

  2. Modifications: MRC may discontinue or materially modify any of its Products by giving Buyer prior notice and will not be liable to Buyer for any damages resulting from such discontinuation or modification. If because of any discontinuance or modification of any of MRC’s Products, Buyer does not wish to purchase such Products, then Buyer may, as its sole remedy, cancel any order placed hereunder to the extent not previously fulfilled by giving MRC notice within ten (10) days of receipt of its notification. In addition, MRC will afford Buyer the opportunity to order from MRC on a last call basis hereunder any standard Products to be discontinued or modified within thirty (30) days of that notice.

  3. Validity: All price quotations are valid for thirty (30) days except for precious metals quotations which are valid for the period indicated.

  4. Taxes: All prices quoted are subject to any tax or charge now existing or hereafter imposed by Federal, State or Municipal authorities, domestic or foreign, upon the Products or the production, sale, distribution or delivery thereof, other than taxes on MRC’s income. Buyer shall promptly reimburse MRC for such taxes.

  5. Errors: MRC reserves the right to correct all typographical or clerical errors that may be present in the prices, the Products or the terms and conditions of any quotation.

  6. Prices and Payments: Buyer will pay MRC the quoted prices plus applicable taxes for any Products it orders. Each shipment of Products by MRC will be a separate transaction and payment is to be made accordingly. Unless otherwise agreed in writing, payment for Products will be as follows:

    U.S. CUSTOMERS

    Precious and Rare Earth Metals:

    Net 10 days from shipment.

    Other Target Materials and Other Products:

    Net 30 days from shipment.

    NON-U.S. CUSTOMERS

    All Products:

    For orders under U.S. $1,000.00 – wire transfer only.

    For orders of U.S. $1,000.00 to U.S. $4,999.00 - wire transfer or letter of credit (L/C). Handling fee of U.S. $100.00 will be charged for L/C.

    For orders of U.S. $5,000.00 and over – wire transfer or L/C. No handling fee.

    Wire Transfer:

    Wire transfers must be sent to Praxair Surface Technologies C/O Chase Manhattan Bank New York, New York

    ABA# 021-000-021 FOR CREDIT of MRC A/C# 323-1-27304 within 30 days of any order to avoid automatic cancellation. Orders will be processed only on receipt of this transfer.

    Letter of Credit:

    Letters of Credit must name Praxair Surface Technologies, Inc. as beneficiary and be confirmed irrevocable by a New York City, New York bank and be received within thirty (30) days of the date of any order to avoid automatic cancellation. Order processed only on receipt. MRC’s draft will be payable in U.S. dollars 100% at sight to cover invoice. Banking charges to be paid by Buyer. Expiration date of L/C to be 120 days from date of L/C.

    Freight is EX WORKS MRC factory (per INCOTERMS 2000), ship airfreight collect. Inland freight charges will be added to the invoice and payment allowed by wire transfer or as part of letter of credit. Insurance to be covered by Buyer.

    Credit: If, in the exclusive judgment of MRC, the financial condition of Buyer at any time does not justify the commencement or continuance of production or shipment of Products, then, in addition to all other remedies it may have hereunder or allowed at law or in equity, MRC may make a written demand for full or partial payment in advance, suspend its performance until such payment is made and cancel the Buyer’s order if such payment is not received by MRC within thirty (30) days of such demand.

    If Buyer delays shipment, payment is due on the date when MRC is prepared to ship. If Buyer delays production, then MRC may demand payment in advance based on the price and percentage of completion. Products ready to ship but held pending payment are at the risk and expense of Buyer.

    If Buyer fails to pay MRC for Products when due, then, in addition to any other remedies available to MRC hereunder or allowed by law or in equity, Buyer will pay MRC an additional monthly financing charge equal to the lesser of: (a) one and one-half percent (1.5%) or (b) the maximum monthly interest rate allowed by law, of any amounts past due, chargeable during each month that payment remains outstanding and will pay MRC’s reasonable expenses of collection, including, but not limited to, attorneys’ fees and courts costs.

    Buyer may not make deductions or offsets of any kind from payments due MRC unless Buyer has received a written credit memorandum from MRC authorizing that deduction or offset.

  7. Changes: Buyer may make reasonable changes to its order for Products by no later than thirty (30) days prior to scheduled ship date with MRC’s written approval and subject to an equitable adjustment to price or delivery schedule or both.

  8. Cancellation and Restocking: MRC reserves the absolute right to refuse cancellations of any Buyer order for Products. When and if permitted by MRC, the following cancellation charges will apply:

  1. Within 30 days of scheduled ship date – 100% of fabrication price

  2. Between 30 and 60 days of scheduled ship date – 25% of fabrication price

  1. Within 30 days of scheduled ship date – 25% of price

  2. Between 30 and 60 days of scheduled ship date – 10% of price

  1. Non-cancelable after receipt of order – 100% of price

  1. 100% of the fabrication price. Precious metal value will be credited to customer account 21 days after receipt, in accordance with market rates and MRC standard refining charge at time of return.

  1. Non-Custom Products – 25%

  2. Custom Products – 100%

  1. Shipment and Delivery: Products will be shipped EX WORKS to the location identified in Buyer’s order. Title and risk of loss or damage passes from MRC to Buyer upon delivery by MRC to carrier. Shipping dates are approximate and based on prompt receipt of all necessary information by MRC at its factory. MRC will not be liable for damages resulting from delays. If MRC delays delivery of Products by more than thirty (30) days after the scheduled date, then Buyer may, as its sole remedy, and MRC’s sole liability for delay, cancel its order for such Products to the extent not previously fulfilled by giving MRC written notice within ten (10) days after said thirty (30) day period. The Products covered by any order placed hereunder will be deemed finally inspected and accepted within thirty (30) days after Buyer’s receipt thereof, unless Buyer gives MRC notice of rejection or notice of any claim during such period. Such acceptance constitutes acknowledgment of full performance by MRC of all its obligations.

  2. Force Majeure: MRC will not be liable for damages due to delay or failure to perform any obligation under any order placed hereunder if such delay or failure results directly or indirectly from circumstances beyond its control. Such circumstances include, but are not limited to, acts of God, acts of war, civil commotions, riots, strikes, lockouts, act of the federal, state or local government, disruption in telecommunications transmissions, inability to obtain equipment or materials, accident, fire, water damages, flood, earthquake or other natural catastrophes. MRC is not required to allocate production and deliverables among customers.

  3. Warranty: :MRC warrants that the Products sold to Buyer hereunder will meet the applicable specifications. Warranty claims by Buyer must be submitted to the Director of Technical Support within thirty (30) after receipt. MRC reserves the right to inspect Products subject to a warranty claim by Buyer. If inspection by MRC indicates improper use, warranty will be considered void.

    Buyer's sole and exclusive remedy and MRC's only liability for breach of this warranty is this to replace Products, if required, prorated on the basis of the remaining useful life, and/or rebonding of materials, if required, at no charge.

    EXCEPT AS PROVIDED ABOVE, MRC DISCLAIMS AND EXCLUDES ALL WARRANTIES RESPECTING PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MRC FURTHER DISCLAIMS AND EXCLUDES ALL WARRANTIES AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTIONS 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE RESPECTING PRODUCTS.

    MRC SHALL HAVE NO LIABILITY OR OBLIGATION TO BUYER WITH RESPECT TO ANY PRODUCTS SUBJECTED TO ABUSE, IMPROPER USE, NEGLIGENCE, ACCIDENT, MODIFICATIONS, FAILURE OF THE END-USER TO FOLLOW NORMAL OPERATING AND MAINTENANCE PROCEDURES OUTLINED IN THE USER’S MANUAL, ATTEMPTED REPAIR BY NON-QUALIFIED PERSONNEL, OPERATION OUTSIDE OF THE NORMAL ENVIRONMENTAL SPECIFICATIONS, OR IF SUCH PRODUCTS’ ORIGINAL IDENTIFICATION (TRADEMARK, SERIAL NUMBER) MARKINGS HAVE BEEN DEFACED, ALTERED OR REMOVED.

  4. Limitation of Liability: THE LIABILITY OF MRC, IF ANY, AND BUYER'S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE. UNDER NO CIRCUMSTANCES WILL MRC BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATIVE TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR COMPENSATION, REIMBURSEMENT OR LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS OR COMMITMENTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, COST OF CAPITAL, OR FOR ANY OTHER REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE CLAIMS OF ANY THIRD PARTY.

  5. Notices: Any notice given under any order placed hereunder will be deemed to be sufficiently given when sent in writing by facsimile or certified or registered mail to the parties at their respective addresses set forth herein or as those addresses may be subsequently changed by giving notice. The date of receipt of any notice hereunder will be deemed the date on which that notice has been given.

  6. Export Sales: Buyer will not export or re-export any Products in violation of applicable U.S. export laws. Buyer will be responsible for compliance with and obtaining any required export and import licenses for those Products.

  7. Assignment: Buyer may not assign any of its rights or delegate any of its obligations hereunder without MRC's prior written consent. Any assignment or delegation hereof without such consent will be deemed null and void and of no force or effect.

  8. Waiver: Either party’s waiver of the other’s default in its obligations hereunder must be in writing will not in any way limit or affect that party’s right to enforce and compel strict compliance herewith in all other respects.

  9. Remedies: Except as specifically provided herein, each right or remedy accorded either party hereunder will not be exclusive but cumulative of all other rights and remedies accorded that party hereunder or allowed by law.

  10. Invalidity: If and to the extent that any of the terms and conditions hereof are specifically determined by any court to be in whole or in part invalid or unenforceable, then this decision shall not affect the validity or enforceability of the remainder hereof.

  11. Choice of Law: These General Terms and Conditions shall be construed and enforced in accordance with the State of New York, U.S.A., without reference to its conflict of laws principles, except that no portion of the United Nations Convention on the Uniform Law of International Sales of Goods will apply.

  12. Government Contracts: Except as specifically provided herein order, no term or condition required in any government contract or subcontract will be deemed a part hereof, even if that provision was included or referenced in any Buyer order, request for quotation, acceptance or other purchasing documents.

  13. Metal Reclamation/Pool Accounts: MRC will accept used or scrap targets for precious metal reclamation and will credit an agreed upon proportion of the final recovered precious metal weight in troy ounces to Buyer’s "pool" account, subject to refining and minimum charges, as established by MRC from time to time, All submissions not of MRC origin will be subject to assay of a representative sample, a payment of a negotiated assay fee and submission of Buyer’s order (subject to MRC’s quote upon completion of the assay); and MRC reserves the right to reject any such order due to an unsatisfactory assay, in which event any precious metal not consumed in the assay will be made available to Buyer. All pool account precious metals of Buyer will be held by MRC, in common with precious metals of its other customers at its Orangeburg, New York plant, to be used in fulfilling Buyer’s future orders; provided, however, that MRC (i) reserves the right to cancel Buyer’s pool account and deliver to Buyer any precious metals represented thereby, on thirty (30) days’ prior written notice to Buyer, and (ii) upon Buyer’s request, MRC will purchase any pool account precious metals of Buyer at prices payable in US dollars and at rates established by MRC for its customers from time to time, less any fees, charges or other amounts owing by Buyer.

    Entire Agreement: These General Terms and Conditions supersede any and all prior written and/or oral agreements between the parties with respect to Products. There are no warranties, representations or understandings of any kind or description whatsoever made by either party to the other, except such as are expressly set forth herein. This Agreement may be modified only by a written instrument signed by duly authorized representatives of both parties making specific reference hereto; and the submission by Buyer of any order acknowledgment forms or other agreements containing different or conflicting terms and conditions shall not effect any modification hereof .